Patna High Court
Shankar Mahton And Ors vs State Of Bihar on 19 May, 2015
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.296 of 1993
AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE, DATED 13TH MAY, 1993, PASSED, BY SHRI
B.N.SINGH, SESSIONS JUDGE, KHAGARIA, IN SESSIONS
CASE NO. 17 OF 1991, ARISING OUT OF KHAGARIA POLICE
STATION CASE NO.251 OF 1990)
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1. Shankar Mahton, son of Sonelal Mahton
2. Lalo Mahton son of Sonelal Mahton
3. Bijo Mahton son of Bundeshwari Mahto
4. Sonelal Mahto son of Munshi Mahto
5. Singheshwar Mahto son of Mahari Mahton,
All residents of village Ram Sakar Pura, P.S. Khagaria, District
Khagaria
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. Kanhaiya Prasad Singh, Senior Advocate
Mr. Raj Ballabh Pd. Yadav, Advocate
Mr. Jitendra Kumar, Advocate
For the State : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
And
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
Date: 19-05-2015
Under the judgment and order, dated
13.05.1993, passed, in Sessions Case No. 17 of 1991, by learned Sessions Judge, Khagaria, the appellants, namely, Shanker Mahton, Lalo Mahton, Bijo Mahton, Sonelal Mahton and Singheshwar Mahton, stand convicted under Sections 364 Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 2 and 302 read with Section 34 of the Indian Penal Code. Following their conviction, under Section 302 read with 34 of the Indian Penal Code, each of the accused-appellants has been sentenced to suffer imprisonment for life. For their conviction under Section 364 of the Indian Penal Code, each of the accused-appellants has been sentenced to suffer rigorous imprisonment for a period of ten years. Both the sentences shall run concurrently.
2. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described thus:
(i) On 17.07.1991, at about 00.45 AM, when the informant (PW 8), Gajendra Narain Singh, his three sons, namely, Niranjan Singh (since deceased), Dhanushdhari (PW 1) and Chandrahas (PW 5), were asleep in their house, the informant woke up, because of flash of torch light and, on getting up from his bed, when the informant asked as to who was there, he saw five persons, armed with pistol, lathis and bhalas, who all abused the informant and asked him to keep quite. The informant, however, on hearing their abusive language, could recognize that one of the intruders was accused Shanker Mahton. Immediately thereafter, all the accused persons, namely, Shanker Mahto, Lalo Mahton, Bijo Mahto, Sonelal Mahton and Singheshwar Mahton, started taking the informant's son, Niranjan, towards west. In the meanwhile, Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 3 informant's two other sons, namely, Dhanushdhari Singh (PW
1) and Chandrahas Singh (PW 5), too, woke up and when the informant and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), started following the accused persons, accused asked the informant and his said two sons to go back or else, they would be murdered.
(ii) Out of fear, though the informant and his said two sons returned back home, they had recognized the abductors in the light of street bulbs and moonlight.
(iii) The abductors were five in number, namely, accused Shanker Mahton, accused Lalo Mahton, accused Bijo Mahton, accused Sonelal Mahton and accused Singheshwar Mahton. Though the informant's son, Niranjan, kept pleading to spare his life, the accused persons forcibly carried him to the house of Upendra Mahto, which was lying vacant, and, on the way, the accused were also assaulting Niranjan.
(iv) On hearing the cries of Niranjan, the informant (PW 8) and his said two sons came to Upendra Mahton's house, where informant's neighbours, namely, Mithilesh Kumar Singh, Arun Singh, Ratan Singh and Permanand Gupta, also came and, despite the fact that some associates of the said accused persons had kept surrounded Upendra's house from outside and, armed with pistols, the said associates of the accused aforementioned had been threatening every one to go Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 4 back and though no one entered Upendra's house and the only door of the house stood closed, yet the informant, his said two sons and their neighbours aforementioned saw, through the window of the house, Niranjan being assaulted inside the room.
(v) The informant went to the Railway Station at Imli and gave, on 17.07.1991, at about 02:15 AM, an application, in writing, to the Station Master, informing the latter about the occurrence with a request to inform the police. This apart, informant's said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5) went to Gangour Police Out-Post and informed the police there about the occurrence.
(vi) The assaults, on the person of Niranjan, continued till 03.30 AM on 18.07.1991 and, having mercilessly assaulted Niranjan, the accused persons along with their associates left.
(vii) Though the accused persons and their associates had left Upendra's house, neither the informant (PW 8), his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), nor any of their neighbours entered into the house to find out what had happened to Niranjan.
(viii) When the police arrived, they opened the door of Upendra's house and found Niranjan lying dead with multiple injuries on his body. The police, then, recorded the informant's statement in the form of his fardbeyan (Exhibit 2).
Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 5
(ix) Treating the said fardbeyan as the First Information Report, Khagaria Police Station Case No. 251 of 1990, under Sections 364/302/34 of the Indian Penal Code, was registered, against all the accused aforementioned.
(x) Inquest was held over Niranjan's dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 364/302/34 of the Indian Penal Code, against all the accused persons aforementioned.
3. At the trial, when charges, under Section 364 and 302 read with Section 34 of the Indian Penal Code, were framed against the accused aforementioned, all the accused-appellants pleaded not guilty.
4. In support of their case, prosecution examined altogether (10) ten witnesses including the Investigating Officer (PW 10). The accused persons were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, the accused persons denied that they had committed the offences, which they were alleged to have been committed by them, the case of the defence being that they had been implicated falsely in the case, because of previous animosity. No evidence was adduced by the defence.
5. Having arrived at the finding that accused - appellants, Shanker Mahton, Lalo Mahton, Bijo Mahton, Sonelal Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 6 Mahton and Singheshwar Mahto, had been proved guilty of the charges under Section 364 read with Section 34 of the Indian Penal Code and Section 302 read with Section 34 of the Indian Penal Code, the learned trial Court convicted them accordingly. Having, however, found no material sufficient to warrant conviction of the remaining co-accused persons, namely, Jitu Mahton, Jawahar Mahton, Deo Narayan Mahton, Mahesh Mahton, Surendra Mahton, Amrendra Mahton, Ganesh Mahton and Rajendra Mahton, these accused have been given benefit of doubt and acquitted accordingly by the learned trial Court.
6. Aggrieved by their conviction and the sentences passed against them, all the five accused-appellants, as convicted persons, have preferred this appeal.
7. During the pendency of the appeal, the appellants, namely, Bijo Mahton and Sonelal Mahton died and, therefore, this appeal stands abated as against the said two appellants.
8. We have heard Mr. Kanhaiya Prasad Singh, learned Senior counsel, appearing for the appellants, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State.
9. While considering the present appeal, it may be noted that according to the evidence of Dr. Rama Nand Kumar (PW 9), who had, admittedly, conducted post mortem examination, on 18.07.1990, on the dead body of Niranjan Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 7 Singh, it was found as follows:-
"External injury:
There were several bruises of
different shape and size were present on
the whole body particularly on the neck and
chest. On dissection there was extra
vassation of blood fluid in the
subcutacatious tissues in association with the injuries mentioned above. Back of neck was badly damaged. Heart and fourth survical vertebra was fracture and compressing the spinal cod, chest right side was also badly damage. 5th & 6the ribs were fractured. Right humerus and right ravius was fractured. Brain substance was pale. Lungs were pale. Heart was full of blood fluid and blood clot. Stomach contain with digested fluid and mucus. Liver, spleen, kidney were pale.'
10. In the opinion of the doctor (PW 9), all the injuries above mentioned were ante mortem in nature, the injuries having been caused by hard and blunt substance. The doctor (PW 9) has opined that the death was caused by shock and comma due to the injuries aforementioned. The report of post mortem examination has been proved as Exhibit-3. The doctor (PW 9) has further opined that the injuries aforementioned were sufficient, in the ordinary course of nature, to cause death of a person.
11. In the light of the medical evidence on record, Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 8 we have no hesitation in holding that Niranjan met with homicidal death. The question, however, remains: whether the accused-appellants or any of them had put to death Niranjan?
12. Our quest for an answer to the question, posed above, brings us to the evidence of the informant, Gajendra Narain Singh (PW 8), and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5).
13. Broadly in tune with each other is the evidence of the informant (PW 8) and his said two sons, namely, PW 1 (Dhanushdhari Singh) and PW 5 (Chandrahas Singh).
14. According to the informant (PW 8), on the night of the occurrence, while they were sleeping in their house along with Niranjan Singh, the informant was awaken by flash of torch light, he (PW 8) got up on his bed and asked those, who had entered into the house, as to who were there, The trespassers replied, using abusive language, to keep quite; but the informant (PW 8) recognized from the voice of one of the trespassers, who had so spoken, that the said person was accused Shanker Mahton.
15. It is in the evidence of informant (PW 8) and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5) that there were altogether five persons present inside the house, who were armed with lathis, bhalas (spears) and pistol and they forcibly started carrying Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 9 Niranjan Singh and, in the meanwhile, informant's said two sons, namely, PW 1 (Dhanushdhari Singh) and PW 5 (Chandrahas Singh), to, woke up and came. It is in the evidence of informant (PW 8) and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5) that along with his two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), when the informant (PW 8) was following the abductors, they recognized, under the street bulbs and moon light, the abductors, the abductors being accused Shanker Mahton, Lalo Mahton, Bijo Mahton, Sonelal Mahton and Singheshwar Mahto. When the informant (PW 8), accompanied by his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), was following the abductors, one of the abductors, pointing out the pistol towards the informant (PW 8) and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), asked them to go back home. On being so threatened, the informant and his said two sons stopped and the abductors took away Niranjan Singh. However, when the informant and his said two sons heard Niranjan's cries, they went out of their house and found that abductors had carried Niranjan to Upendra's house, which was lying vacant.
16. It is in the evidence of informant and his said two sons that having taken Niranjan Singh to Upendra's house, Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 10 the accused persons closed the door of the house and, armed with pistols and other deadly weapons, some of the associates, namely, accused Jittu Mahton, Rajendra Mahton, Bindeshwari Mahto, Jawahar Mahton, Ganesh Mahton, Deo Narain Mahton, Mahesh Mahton, Surendra Mahto and Amrendra Mahto surrounded the house from the outside and threatened the informant, his said two sons and their neighours, who had arrived, there not to come near the house of Upendra, but the informant, his said two sons and others saw, through the window, Niranjan being assaulted by accused persons.
17. It is the further evidence of the informant (PW
8) and his said two sons, namely, PW 1 and PW 5, that the informant (PW 8) went to Railway Station at Imli and handed over a written application, in writing, to the Station Master narrating the occurrence therein and requesting the police to take action and, in the meanwhile, informant's said two sons, namely, PW 1 and PW 5, went to Gangour police outpost and informed the police about the occurrence, whereupon the police came to the place of occurrence, but before the police arrived, the accused persons had killed Niranjan by twisting his neck and left, with their associates, the house of Upendra by closing its door.
18. On arrival of the police, the police personnel opened the door of Upendra's house and found Niranjan lying Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 11 dead inside the house, whereupon inquest was held over the said dead body and the statement of the informant was also recorded, which having been proved as Exhibit 2, has been treated as the First Information Report of the case.
19. PW 2 (Ratan Kumar Singh), PW 3 (Upendra Prasad), PW 4 (Arun Kumar Singh), PW 6 (Wakil Pandit) and PW 7 (Mithilesh Kumar Singh) are neighbours and co-villagers of the informant and their evidence is to the effect that on hearing hulla, they came near the house of Upendra, but they were not allowed to enter into the house by some of the associates of the said five accused persons. It is also in the evidence of these witnesses that the associates of the accused, who had surrounded Upendra's house from the outside, were armed with pistol, lathis, etc., and they were not allowing any one to come near the house, but these witnesses claimed to have managed to see what was happening inside the house and they saw the said five accused persons assaulting Niranjan Singh and, eventually, put him to death, but before the police arrived there, all the accused persons and their associates fled away from Upendra's house by closing its door and when the police arrived there, the door of Upendra's house was opened and the dead body of Niranjan was found lying inside the said house.
20. Whether the evidence, which is so adduced by Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 12 the prosecution, can be believed is the question, which, now, confronts us?
21. What transpires from the First Information Report is that the house of the informant is the first place of occurrence, where there was no source of light and the informant identified one of the abductors on the basis of the voice, the voice being of accused Shanker Mahton. However, according to informant's evidence, while the informant's son, Niranjan Singh (deceased), was being taken away by the abductors, the informant and his two sons, namely, PW 1 and PW 5, followed the abductors to some distance and recognized the said accused persons in the light of street bulbs and moon light, when one of the abductors, pointing out the pistol towards the informant (PW 8) and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), asked them to go back home. On being so threatened, the informant and his said two sons returned back, because of threat to their own lives by the accused-appellants.
22. Thus, the informant and his said two sons claims that they had recognized the abductors in the light of the street bulbs and the light of the moon and the abductors were accused-appellants, Shanker Mahton, Lalo Mahton, Bijo Mahton, Sonelal Mahton and Singheshwar Mahto.
23. If the evidence so given by the informant (PW 8) Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 13 and his two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), were true, then, they must have known, even before Niranjan was taken to Upendra's house, as to who the abductors were and, naturally, therefore, the names of these appeals would have had found mentioned in the written application, which the informant (PW 8) claims to have given to the Station Master at the Railway Station, Imli, and/or the oral information, which the informant's said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), had given to the police at Gangour Police Out-post, as regards the abduction of Niranjan.
24. Clearly, therefore, the written application, which the informant claims to have given, at the Railway Station, Imli, was an important piece of evidence and ought to have been produced at the trial and so was the evidentiary value of the information, which Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5) claimed to have given to Gangour Police Out-Post so as to convince the Court that the informant (PW 8) and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), had, indeed, seen and recognized the abductors, the abductors being accused Shanker Mahton, Lalo Mahton, Bijo Mahton, Sonelal Mahton and Singheshwar Mahton.
25. The second place of occurrence, where the Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 14 informant's son, Niranjan, died, was the house of one Upendra and it was at the second place of occurrence that the informant's neighbours, namely, Mithilesh Kumar Singh (PW 7), Arun Kumar Singh (PW 4), Ratan Kumar Singh (PW 2) and Parmanand Gupta (not examined) had gathered and claimed to have seen the occurrence through the window of Upendra's house.
26. It is the claim of the informant (PW 8), in his evidence, that he (PW 8) went to the Railway Station at Imli and gave an application, in writing, to the Station Master, at 2.15 AM, on 17.07.1991. This application was never brought on record and it remains unknown as to what the informant (PW 8) had actually stated in the said application, more particularly, whether he had mentioned, in the said application, the fact as to who the abductors were or, in other words the fact as to whether the informant and his said two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), had or had not recognized the abductors.
27. Coupled with the above, according to the evidence on record, PW 1 and PW 5, both sons of the informant, went to the Gangour police outpost and informed the police about the occurrence and it was pursuant to this information that the police arrived at the second place of occurrence, i.e., at Upendra's house, though before arrival of Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 15 the police, the abductors, along with their associates, had already run away.
28. In the light of the above evidence of PW 1 and PW 5 since the information given to the police at Gangour outpost was to the effect that informant's son, Niranjan, had been abducted and taken to the house of Upendra, it becomes clear that PW1 and PW 5 informed the police about commission of a cognizable offence and it was in this background that the police, headed by the Investigating Officer (PW 10), came to the place of occurrence. The arrival of the police, therefore, at the second place of occurrence, i.e., Upendra's house, was during the course of investigation to ascertain the correctness and veracity of the information, which had been given to the police by PW 1 and PW 5.
29. Consequently, the informant's statement (Exhibit
2), recorded by the Investigating Officer (PW 10), on his arrival at the second place of occurrence, was not, and could not have been treated as, the First Information Report inasmuch as the First Information Report was the information given by PW 1 and PW 5 to the police at Gangour police outpost with regard to the alleged abduction of the informant's son, Niranjan, and the informant's fardbeyan (Exhibit 2), which has been treated as the First Information Report, was, in law, nothing but the informant's statement recorded during the investigation of the Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 16 case under Section 161 of the Code of Criminal Procedure.
30. Clearly thus, the prosecution withheld the First Information Report, which had set the machinery of law into motion. The possibility, therefore, of the abductors' names having not surfaced either in the written application, which had been submitted by the informant (PW 8) to the Station Master, at Railway Station, Imli, or, in the information, which had been given to the police, at Gangour Police Out-Post, by the informant's two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), cannot be confidently ruled out. The fall out would be that the prosecution did not convincingly prove that the abductors had been recognized by the informant (PW 8) and his two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), until the time the names of the abductors surfaced in the informant's statement recorded under Section 161 of the Code of Criminal Procedure and had been treated, though not correctly and legally, as the First Information Report (Exhibit-2).
31. Moreover, the evidence of the informant, his two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), and their neighbours, namely, PW 2, PW 4 and PW 7, are to the effect that though they were not allowed to enter into the house of Upendra and the only door of the house was kept closed with the associates of the abductors guarding Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 17 the house with lethal weapons, such as, pistol, and not allowing any one to come near the house, the informant, his two sons as well as their neighbours still managed to witness through the window as to what was happening inside the house. The evidence, so given, was wholly unsafe to rely upon, the same being inherently unsafe in nature.
32. Moreover, it is necessary to point out that the informant claims that as his son, Niranjan, became unconscious and fell down on ground, accused Shankar Mahto twisted the right hand and emasculated it, accused Bijo Mahto twisted left hand and emasculated it, accused Lalo Mahto twisted right leg and emasculated it, accused Singheshwar Mahto and accused Sone Lal Mahto, after keeping lathis on the chest of Niranjan, jumped on his chest, broke Niranjan's ribs and when his son did not die, accused Deo Narain Mahto told the other accused persons to press Niranjan's testicles, and even then, when Niranjan did not die, accused Bijo and Lalo Mahto twisted the neck of Niranjan and, having committed murder, all the accused fled away from Upendra's house after locking its door.
33. The Investigating Officer (PW 10) has inspected the first place of occurrence and has asserted, at the trial, that he did not find, in the house of the informant, electric bulb. Naturally, therefore, there was, as the informant (PW 8) has deposed, darkness at the first place of occurrence; yet the Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 18 evidence of the informant is that he had seen five accused persons inside his house with different weapons ascribed to them. The evidence, so given, is wholly unreliable.
34. Interestingly enough, PW 1 (Dhanushdhari Singh) son of the informant (PW 8), claims that when he woke up on hearing alarm raised by his father, he saw five accused persons and he has named them as accused Shanker Mahton, accused Lalu Mahton, and also claims that accused Bijo Mahton was armed with pistol, accused Sonelal Mahto was armed with lathi, and accused Singheshwar Mahto was armed with bhala. PW 1 also claims that he recognized the abductors in the light of a bulb, which was burning in his house (i.e., the informant's house). This claim of PW 1 is completely belied not only by the evidence of the Investigating Officer (PW 10), but also by the informant (PW 8) himself inasmuch as the informant (PW 8) has clearly deposed that there was darkness at the place, where he was sleeping with his son Niranjan (since deceased), and the Investigating Officer (PW 10) has deposed that he did not find any bulb at the place, where informant was sleeping with Niranjan.
35. Contrary to the claim of PW 1 in his evidence that he recognized five accused persons in the light of the street bulbs and as there was moon light, it has clearly emerged from the cross-examination of PW 1, coupled with the Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 19 evidence of the Investigating Officer (PW 10), that in previous statement recorded during investigation, PW 1 had claimed that he had recognized the accused persons with their arms in the light of the torch and in the light of the electricity bulb at his house meaning thereby that it was at the first place of occurrence, i.e., the house of the informant itself, that the abductors were recognized by PW 1. This assertion of PW 1, as already pointed out above, is completely belied by the evidence of the informant (PW 8) and also by the evidence of the Investigating Officer (PW 10). PW 1 is, therefore, not a witness, whose evidence can be relied upon.
36. Coming to the evidence of PW 5 (Chandrahas Singh), we notice that he claims to have recognized the accused in the light of the torch, which accused were holding. The evidence, so given by PW 5, is clearly belied by the evidence of the informant (PW 8), which we have already discussed above.
37. In other words, as no source of light was available at the first place of occurrence, the claim of PW 1 and PW 5 that they had recognized the abductors, at their house, is wholly unbelievable. In his fardbeyan (Exhibit 2), which has been treated as First Information Report, PW 8 (informant) has claimed that accused Shanker Mahton assaulted Niranjan by means of a leg of a cot, accused Biju Mahton assaulted Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 20 Niranjan by means of samath, accused Lalo Mahton assaulted Niranjan by means of wooden club and accused Sonelal Mahto by means of lathi.
38. The informant (PW 8) claims, in his evidence, that accused Shanker Mahton twisted right hand and emasculated the deceased. This assertion is completely belied by the medical evidence on record inasmuch as no fracture in the right hand was found. Similarly, PW 1 claims that he saw accused Bijo Mahto twisting the left hand of Niranjan and emasculating the same. This assertion, too, is belied by the medical evidence on record. This apart, according to the informant, accused Lalo Mahton twisted the right leg and broke the same, but medical evidence does not support. The informant also claims that accused Singheshwar Mahton and Sone Lal Mahto put lathis on the chest and broke the rib by jumping on the chest and, then, when Niranjan did not die, accused Deo Narayan Mahto asked his associates to press Niranjan's testicles and the testicles were, then, pressed. The post mortem report, however, reveals external injuries like bruises of different shape and sizes on the whole body, particularly, neck and chest, but there was no twisting of neck contrary to what PW 1, PW 5 and PW 8 have deposed. No injury on the testicles was found either.
39. Clearly, therefore, the medical evidence on Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 21 record does not support the description of the occurrence, which the informant and his two sons have given with regard to the assaults, which had allegedly taken place inside Upendra's house at the hands of the accused-appellants.
40. What cannot be ignored and must not be ignored is the fact that in the light of the assertions of the informant (PW 8) and his two sons, namely, Dhanushdhari Singh (PW 1) and Chandrahas Singh (PW 5), that they had seen the assaults on Niranjan inside Upendra's house, with its door closed, and the associates of the accused-appellants, armed with lethal weapons, keeping a watch on the house and not allowing anyone to even come near the said house, it clearly emerges that no one could have seen the assault taking place on Niranjan inside the house. Crystal clear, thus, it is that the prosecution witnesses have made false assertions that they had seen the assaults on Niranjan taking place inside the house.
41. Because of what have been discussed and pointed out above, it is clear that the evidence, adduced by the prosecution, is nothing but a bundle of half-truth and untruth and since the truth, if any, is so inextricably mixed with the falsehood that it is wholly impossible to disengage the truth from the half-truth and untruth, the prosecution's case has to be held as wholly unsafe to believe in or rely upon.
Patna High Court CR. APP (DB) No.296 of 1993 dt.19-05-2015 22
42. In the result and for the forgoing reasons, we allow these two appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted.
43. Since all the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall accordingly stand discharged.
44. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.
(I. A. Ansari, J.) S. P. Singh, J.: I agree (Samarendra Pratap Singh, J.) A.I./-
A.F.R. U √ T √